On March 21, when the Intolerable Act of 2010 was passed by the House of Representatives, calls for repeal began almost immediately.
Shortly thereafter, the congressional minority party began campaigning on the platform, “Repeal and Replace“. As-if… This is the party we elected in 2000 on promises to privatize social security. After six years in power, instead of privatizing social security, they gave us No Child Left Behind, The Patriot Act and Medicare Part-D. After the congress changed control, the same president gave us TARP and Auto-Maker bailouts. With that track record, does anyone really believe they’re going to repeal the Intolerable Act of 2010? Not likely.
We need to remember that all politicians respond to incentives. The incentives for the Washington republicans in this situation are to give the plausible appearance of trying to repeal it, without actually getting it done. That way, they get reelected and they get to keep their new-found power too. Incentives work in our favor at the state level, but not in Washington.
Let’s suspend disbelief for a moment anyway and imagine that these Washington politicians, who have never in my lifetime managed to eliminate a major government program, actually do manage to repeal the Intolerable Act. Then what?
The year long defiance exhibited by this Congress in passing the Intolerable Act included lies, midnight votes, parliamentary tricks, bribery with public funds, public attacks and demonization levied upon American people who dared to disagree with the aristocracy, finally culminating with an AYE vote for a piece of unconstitutional legislation. This shows us that the legislative branch no longer answers to the people nor recognizes Constitutional limits on its authority. The legislative branch holds us in contempt. Even if the Intolerable Act is repealed, these facts will remain, unchanged.
In the 2010 State of the Union Address, our president spoke of a bipartisan commission on the deficit, saying,
…Yesterday, the Senate blocked a bill that would have created this commission. So I will issue an executive order that will allow us to go forward…
Two consecutive administrations from both parties have now shown, through their unbridled use of executive orders and signing statements, that the executive branch holds not just the people, but also the legislative branch in contempt. In February, our president, who had claimed as a senator that the Patriot Act is unconstitutional, signed legislation to renew the Patriot Act. In March, our president signed the unconstitutional Intolerable Act. Even if the Intolerable Act is repealed, we will be left with an executive branch who believes it is free to legislate when unsatisfied with the work product of the actual legislators. We will be left with an executive branch who feels free to sign unconstitutional laws.
Given these facts, even if the repeal effort succeeds, if we don’t fix the structural defects in the system, there will be another Intolerable Act. It is only a matter of time. Washington will keep grabbing and clawing at our Liberties until they are all lost, or until we put a lasting stop to it. So yes, we should be working to repeal the Intolerable Act, but that is only part of the challenge. We also need to restore the concept of Defense in Depth to our own Liberties. Defense in Depth ensures that when one layer of defense is breached, another layer is encountered. Hopefully, the attacker is repelled before the layers of defense are exhausted. ComputerWorld describes it like this,
Defense in depth should be thought of not as a set of independent steps to be executed separately, but as a series of related and overlapping technical and nontechnical security measures that, when strategically deployed together, have a greater effect than their individual components.
Although they may have had a different name for it, our founders understood this concept and designed it into our Constitution. Alexander Hamilton said,
“This balance between the national and state governments is of the utmost importance; it forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other.”
So our first layer of defense against this Intolerable Act lies with the minority party in Washington DC and the 2010 election. That battle is important, but it is probably not one that Tenth Amendment advocates should focus on. Other layers of defense involve the states. These layers are the ones where the Tenth Amendment comes into play.
Beyond repeal, one layer of defense comes from the law suits by the states demanding Tenth Amendment relief from the courts. The problems here are that 1.) The law suits will take a great deal of time and 2.) Ultimately, we are counting on the federal government to rule against itself. As with repeal, this is really not likely. It is important that these go forward though, for if they do manage to succeed, they will have the effect of restoring some limits on the rogue executive and legislative branches. Also, if the law suits don’t succeed, then at least we will benefit from the knowledge that all three branches of the federal government believe that the Constitution has been nullified.
Another layer is in state level legislative resistance such as Pennsylvania HB2053, HB2179 or The Tenth Amendment Center’s Federal Health Care Nullification legislation template. A benefit of this layer is that it can start producing results earlier than the courts. Another benefit is that we are not relying on the federal government to slap its own wrist. Also, successful nullification efforts by the states may embolden the supreme court to actually do its job and uphold the Tenth Amendment.
An important layer of defense is the mobilization of the people. We must be visible in our states and in Washington if we want our political officials to act on our behalf. Silence is consent. Tea Parties, letters to the editor, letters to our state officials are things everyone can do. Our officials will be more effective if we motivate them.
All of those defenses are being mounted in tandem, and quickly. Other possible layers of defense include law suits by individual citizens and private organizations, non-compliance by medical professionals or individuals as well as amending the constitution.
If the Intolerable Act is allowed to stand, we will have lost the Constitution. If it is repealed but the system that produced it is allowed to survive, another Intolerable Act is sure to follow. If our children are not to be enslaved, we must void this act and we must also restore the numerous layers of defense which have been silently breached by federal scope creep. Our job is not done until we have reminded Washington of what limited government means and compelled them to recognize and honor their boundaries. It’s time to roll up our sleeves.